McDaid v. Aztec West Condominium Association

Plaintiff Maureen McDaid brought a negligence action against defendants Aztec West Condominium Association; Preferred Management, Inc., the Association’s management company; and Bergen Hydraulic Elevator, the elevator-maintenance provider. The complaint alleged that McDaid suffered serious injuries when she was exiting the elevator and the elevator doors unexpectedly and “repeatedly” closed on her. At the end of the discovery period, the trial court granted summary judgment in favor of defendants and dismissed McDaid’s complaint. The court rejected the application of the doctrine of res ipsa loquitur, finding that the malfunctioning of elevator doors is not an occurrence that “ordinarily bespeaks negligence.” More specifically, the court stated that McDaid “did not refute the contention that the electric eye, being a mechanical device, is subject to failure from time to time totally unrelated to negligence.” The New Jersey Supreme Court found that because the malfunctioning of elevator doors that close on a passenger bespeaks negligence, giving rise to a res ipsa inference, the trial court improvidently granted summary judgment.

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)
Maureen McDaid v. Aztec West Condominium Association (A-88-16) (079325)
Argued March 12, 2018 -- Decided July 17, 2018
ALBIN, J., writing for the Court.
Res ipsa loquitur is an equitable doctrine that allows, in appropriate circumstances, a
permissive inference of negligence to be drawn against a party who exercises exclusive
control of an instrumentality that malfunctions and causes injury to another. In Jerista v.
Murray, the Court held that the res ipsa inference applied to a supermarket’s automatic door
that went awry, striking and injuring a customer as she entered the store.
185 N.J. 175, 190-
200 (2005). In this negligence case, the Court considers whether the principles enunciated in
Jerista apply equally to a condominium building’s elevator doors that opened and closed on
plaintiff, a resident, seriously injuring her as she attempted to exit the elevator.
Plaintiff Maureen McDaid brought a negligence action against defendants Aztec West
Condominium Association; Preferred Management, Inc., the Association’s management
company; and Bergen Hydraulic Elevator, the elevator-maintenance provider. The complaint
alleged that McDaid suffered serious injuries when she was exiting the elevator and the
elevator doors unexpectedly and “repeatedly” closed on her.
The elevator doors were equipped with two safety features -- a mechanical safety
edge and an electric eye. A mechanical safety edge is a bumper that causes an elevator door
to retract when it makes contact with an object. An electric eye emits light beams from the
elevator doors across the entrance threshold, detecting the presence of objects in its pathway.
If working properly, the electric eye prevents the elevator doors from closing on a person.
Four days after the accident, a construction code official for the City of Hackensack
inspected the elevator and determined that the electric eye was in need of repair. Shortly
afterward, Bergen Hydraulic conducted an inspection and found that the elevator’s electric
eye’s relay contacts were “not functioning properly” and repaired it that day.
McDaid provided a report from an expert in elevator repair and maintenance, who
concluded that the elevator’s malfunctioning electric eye caused the accident. The
Condominium Association and Preferred Management submitted an expert report from a
certified elevator inspector, which stated that McDaid’s “failure to clear the path” of the
closing elevator door “in a timely manner” was the proximate cause of her injuries. Bergen
Hydraulic’s expert report agreed with that assertion and stated that the elevator was
“properly maintained” at the time of the accident.
1
At the end of the discovery period, the trial court granted summary judgment in favor
of defendants and dismissed McDaid’s complaint. The court rejected the application of the
doctrine of res ipsa loquitur, finding that the malfunctioning of elevator doors is not an
occurrence that “ordinarily bespeaks negligence.” More specifically, the court stated that
McDaid “did not refute the contention that the electric eye, being a mechanical device, is
subject to failure from time to time totally unrelated to negligence.” Relying on Gore v. Otis
Elevator Co.,
335 N.J. Super. 296, 302-03 (App. Div. 2000), the court held that McDaid
failed “to bring forth affirmative evidence that tends to exclude other causes” for the
malfunctioning of the elevator.
In an unreported opinion, the Appellate Division affirmed, “substantially for the
reasons expressed by [the trial court].”
The Court granted McDaid’s petition for certification.
230 N.J. 528 (2017).
HELD: The dictates of Jerista apply to the facts presented here. The res ipsa inference of
negligence is applicable because common experience instructs that elevator doors -- however
complex their operation may be -- ordinarily should not strike a person entering or exiting an
elevator in the absence of negligence. To warrant the inference, plaintiff had no obligation to
exclude other possible causes that might explain the malfunctioning of the elevator doors or
to show that defendants were on notice of some defect in the doors’ operation.
1. Under the Condominium Act,
N.J.S.A. 46:8B-1 to -38, condominium associations are
“responsible for the administration and management of the condominium and condominium
property.”
N.J.S.A. 46:8B-12. One such duty is to ensure that “elevator doors, . . . safety
devices and operating mechanisms [are] maintained in good working order and free of
hazards.” N.J.A.C. 5:10-12.1(a). That duty necessarily includes a duty of reasonable care to
guard against any dangerous conditions relating to the elevator that the association either
knows about or should have discovered. (pp. 11-12)
2. In a premises liability case, the plaintiff has the burden of proving that the property
owner’s negligence caused her injuries. Jerista,
185 N.J. at 191. “Res ipsa loquitur, Latin for
'the thing speaks for itself,’ is a longstanding evidentiary rule grounded in principles of
equity” that “enables the plaintiff to make out a prima facie case” in certain circumstances.
Ibid. The res ipsa doctrine allows a factfinder to draw an inference of negligence when: “(a)
the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the
defendant’s exclusive control; and (c) there is no indication in the circumstances that the
injury was the result of the plaintiff’s own voluntary act or neglect.” Id. at 192. The present
case implicates only the first prong of the res ipsa analysis -- whether the closing of
automatic elevator doors on a passenger “ordinarily bespeaks negligence.” Whether an
accident “ordinarily bespeaks negligence” requires a probability assessment. Obviously,
automatic doors are not supposed to close on and seriously injure a passenger who enters or
exits an elevator. But if that happens, is it more likely that the accident occurred because due
care was not exercised in the maintenance of the elevator or because elevator doors will
malfunction, from time to time, without anyone being at fault? (pp. 12-14)
2
3. To invoke the res ipsa inference, a plaintiff does not have to exclude alternative possible
causes of the accident, “provided that the circumstances establish 'that it is more probable
than not that the defendant’s negligence was a proximate cause of the mishap.’” Ibid. The
res ipsa inference ordinarily will allow the plaintiff to survive a motion to dismiss at the
summary judgment stage unless “the defendant’s countervailing proofs are so overwhelming
that they destroy any reasonable inference of negligence.” Id. at 193. (pp. 14-15)
4. The Court applied the doctrine of res ipsa in Jerista, a case involving a supermarket’s
automatic door that caused injury to a patron. Id. at 190-200. The Court reasoned that “[a]n
automatic door may be a highly sophisticated piece of machinery, but it probably does not
close on an innocent patron causing injury unless the premises’ owner negligently
maintained it. That conclusion can be reached based on common knowledge without resort
to expert testimony.” Id. at 197. Importantly, in Jerista, the Court specifically disapproved
of the legal pronouncements in Jimenez v. GNOC, Corp.,
286 N.J. Super. 533, 544 (App.
Div. 1996), that res ipsa is inapplicable in complex instrumentality cases unless expert
testimony is presented and the injured party “exclude[s] other possible causes of the injury.”
Id. at 197-98. Here, the trial court and appellate panel relied on those discredited legal
pronouncements, not the principles discussed in Jerista. (pp. 15-18)
5. In a negligent-maintenance action against a premises’ owner and others who exercise
exclusive control, the res ipsa principles enunciated in Jerista apply as strongly to
malfunctioning elevator doors as they do to malfunctioning automatic doors. Just as, based
on common knowledge, an automatic door “probably does not close on an innocent patron
causing injury unless the premises’ owner negligently maintained it,” Jerista,
185 N.J. at 197,
the same is true of a malfunctioning elevator door. New Jersey joins those jurisdictions that
apply the res ipsa inference to cases involving malfunctioning elevator doors. (pp. 18-20)
6. Because the malfunctioning of elevator doors that close on a passenger bespeaks
negligence, giving rise to a res ipsa inference, the trial court improvidently granted summary
judgment based on its analysis of prong one of the res ipsa doctrine. To gain the benefit of
the res ipsa inference, McDaid did not have to present expert testimony pinpointing the cause
of the malfunction. McDaid was not required to provide evidence that excluded other
possible causes of her injuries or that defendants were on notice of a malfunction to trigger
the res ipsa inference. This is not a case where proofs presented by defendants were “so
overwhelming that they destroy[ed] any reasonable inference of negligence.” See id. at 193.
At trial, defendants may offer their defenses against the negligence claims, and a jury will be
free to accept or reject the res ipsa inference. At this summary judgment stage, however, the
evidence must be viewed in the light most favorable to McDaid. Accordingly, the Court
reverses the judgment of the Appellate Division and remands to the trial court for further
proceedings. (pp. 20-23)
REVERSED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-
88 September Term 2016
079325
MAUREEN MCDAID,
Plaintiff-Appellant,
v.
AZTEC WEST CONDOMINIUM
ASSOCIATION, BERGEN HYDRAULIC
ELEVATOR, and PREFERRED
MANAGEMENT, INC.,
Defendants-Respondents.
Argued March 12, 2018 – Decided July 17, 2018
On certification to the Superior Court,
Appellate Division.
Lisa A. Lehrer argued the cause for
appellant (Davis, Saperstein & Salomon,
attorneys; Lisa A. Lehrer, of counsel and on
the brief).
Robert J. Mormile argued the cause for
respondents Aztec West Condominium
Association, Inc. and Preferred Management,
Inc. (Farkas & Donohue, attorneys; Robert J.
Mormile, of counsel, and Christine M. Jones,
on the briefs).
Brian L. Calistri argued the cause for
respondent Bergen Hydraulic Elevator (Weber
Gallagher Simpson Stapleton Fires & Newby,
attorneys; Brian L. Calistri and Anthony T.
Ling, on the briefs).
William L. Gold argued the cause for amicus
curiae New Jersey Association for Justice
(Bendit Weinstock, attorneys; William L.
Gold, of counsel and on the brief, and Eryn
M. Fernandez-Ledon, on the brief).
1
JUSTICE ALBIN delivered the opinion of the Court.
Res ipsa loquitur is an equitable doctrine that allows, in
appropriate circumstances, a permissive inference of negligence
to be drawn against a party who exercises exclusive control of
an instrumentality that malfunctions and causes injury to
another. The rationale for the res ipsa inference is that the
injury-causing occurrence ordinarily would not happen in the
absence of negligence and that the party controlling the
instrumentality is in the best position to explain what went
wrong and why. In Jerista v. Murray, we held that the res ipsa
inference applied to a supermarket’s automatic door that went
awry, striking and injuring a customer as she entered the store.
185 N.J. 175, 190-200 (2005).
In this negligence case, we must decide whether the
principles enunciated in Jerista apply equally to a condominium
building’s elevator doors that opened and closed on plaintiff, a
resident, seriously injuring her as she attempted to exit the
elevator. The trial court rejected the res ipsa inference,
finding that the cause of an elevator’s malfunction can be
unrelated to negligent maintenance and that plaintiff failed to
offer proofs excluding non-fault-based causes. Based in large
part on its rejection of the res ipsa inference, the court
granted summary judgment to defendants. The Appellate Division
2
affirmed.
We now hold that the dictates of Jerista apply to the facts
presented here. The res ipsa inference of negligence is
applicable because common experience instructs that elevator
doors -- however complex their operation may be -- ordinarily
should not strike a person entering or exiting an elevator in
the absence of negligence. To warrant the res ipsa inference,
the injured plaintiff had no obligation to exclude other
possible causes that might explain the malfunctioning of the
elevator doors or to show that defendants were on notice of some
defect in the doors’ operation. In granting summary judgment in
favor of defendants, the trial court and Appellate Division
erred in finding that res ipsa does not apply to malfunctioning
elevator doors.
We therefore reverse the entry of summary judgment and
remand for further proceedings.
I.
A.
Plaintiff Maureen McDaid brought a negligence action
against defendants Aztec West Condominium Association for Aztec
West Condominium in Hackensack (the Condominium Association);
Preferred Management, Inc., the Association’s management
company; and Bergen Hydraulic Elevator, the elevator-maintenance
provider. Howard Gartenberg served as the Condominium
3
Association’s property manager. The complaint alleged that
McDaid suffered serious injuries when she was exiting the
elevator and the elevator doors unexpectedly and “repeatedly”
closed on her. Defendants moved for summary judgment, claiming
that McDaid did not make out a prima facie case of negligence.
We rely on the factual presentation in the summary judgment
record, giving McDaid -- the non-moving party -- the benefit of
the most favorable evidence to support her claim, as we must at
this stage in the proceedings. See R. 4:46-2; Bauer v. Nesbitt,
198 N.J. 601, 604 n.1 (2009) (“In considering the merits of a
motion for summary judgment, both trial and appellate courts
must view the facts in the light most favorable to the non-
moving party . . . .”).
B.
McDaid, who has cerebral palsy, was a resident of the Aztec
West Condominium in Hackensack. Sometime in mid to late
September 2010, McDaid complained to Gartenberg that the
elevator door was “closing too fast.” Gartenberg communicated
this information to Bergen Hydraulic’s representative.1 McDaid
asserts that on October 14, 2010, she entered the building’s
elevator and rode it to the lobby. According to McDaid, as she
1 In depositions, Gartenberg claimed that Bergen Hydraulic’s
representative slowed the closing speed of the elevator doors
during a maintenance visit on September 22, 2010, but Bergen’s
representative denied that he did so or was asked to do so.
4
exited the elevator, the elevator doors closed prematurely,
striking her and knocking her to the ground. She fell face
forward, hitting her head on her walker. As she lay prone, the
doors opened and closed on her a second time. McDaid suffered
injuries to various parts of her body and required a seventeen-
day stay at a rehabilitation institute where she received
extensive physical therapy and other medical treatment.
The elevator doors were equipped with two safety features -
- a mechanical safety edge and an electric eye. A mechanical
safety edge is a bumper that causes an elevator door to retract
when it makes contact with an object. An electric eye emits
light beams from the elevator doors across the entrance
threshold, detecting the presence of objects in its pathway. If
working properly, the electric eye prevents the elevator doors
from closing on a person.
Four days after the accident, a construction code official
for the City of Hackensack inspected the condominium’s elevator
and determined that the electric eye was in need of repair.
Shortly afterward, Bergen Hydraulic conducted an inspection,
found that the elevator’s electric eye’s relay contacts were
“not functioning properly,” and repaired it that day.
Defendants had interlocking contractual relationships. The
Condominium Association contracted with Preferred Management to
maintain the common elements of the condominium property,
5
including the mechanical equipment owned by the Association.
Beginning in 1995, the Condominium Association contracted with
Bergen Hydraulic to provide monthly and emergency service and
maintenance to the elevator, and to repair and replace elevator
door protection and photoelectric devices. Each defendant
denied knowledge of any malfunction or problems with the
elevator’s electric eye before the accident.
McDaid provided a report from an expert in elevator repair
and maintenance, who concluded that the elevator’s
malfunctioning electric eye caused the accident. The
Condominium Association and Preferred Management submitted an
expert report from a certified elevator inspector, which stated
that McDaid’s “failure to clear the path” of the closing
elevator door “in a timely manner” was the proximate cause of
her injuries. Bergen Hydraulic’s expert report agreed with that
assertion and stated that the elevator was “properly maintained”
at the time of the accident.
C.
At the end of the discovery period, defendants moved for
summary judgment on the basis that they did not have notice of a
malfunctioning electric eye before the accident and therefore
McDaid could not hold them liable for negligently causing her
injuries.
The trial court granted summary judgment in favor of
6
defendants and dismissed McDaid’s complaint. The court rejected
the application of the doctrine of res ipsa loquitur, finding
that the malfunctioning of elevator doors is not an occurrence
that “ordinarily bespeaks negligence.” More specifically, the
court stated that McDaid “did not refute the contention that the
electric eye, being a mechanical device, is subject to failure
from time to time totally unrelated to negligence.” Relying on
Gore v. Otis Elevator Co.,
335 N.J. Super. 296, 302-03 (App.
Div. 2000), the court held that McDaid failed “to bring forth
affirmative evidence that tends to exclude other causes” for the
malfunctioning of the elevator.
The court accepted that the parties had a legitimate
dispute about whether the electric eye malfunctioned, causing
the elevator doors to close on McDaid. The court, however,
concluded that McDaid failed to establish that defendants had
actual or constructive notice of the malfunctioning electric
eye. Additionally, the trial court struck, as a net opinion,
the part of McDaid’s expert report that stated that Bergen
Hydraulic should have recommended that the protection system in
the condominium’s elevator “be replaced with a new upgraded
safer reopening device.”
For those reasons, the court determined that McDaid fell
7
short of making out a prima facie case of negligence.2
D.
In an unreported opinion, the Appellate Division affirmed,
“substantially for the reasons expressed by [the trial court].”
The panel agreed with the trial court that res ipsa loquitur did
not apply, relying on Gore,
335 N.J. Super. at 296, a case in
which the Appellate Division “declined to apply the [res ipsa]
doctrine against an elevator company in an action for negligent
maintenance of elevator doors.” The panel also agreed that part
of McDaid’s expert report, referring to the failure to upgrade
the elevator’s protection system, constituted a net opinion.
The panel ultimately held that defendants’ lack of “actual or
constructive notice of the electric eye malfunction . . . [was]
fatal to [McDaid’s] claims of premises liability.”
We granted McDaid’s petition for certification.
230 N.J.
528 (2017). We also granted the motion of the New Jersey
Association for Justice (NJAJ) to participate as amicus curiae.
II.
A.
McDaid argues that the Condominium Association, which
2 The parties disputed a number of facts that the trial court
erroneously treated as undisputed. Those disputed facts
included: whether Gartenberg communicated McDaid’s complaint
about the speed of the elevator door to Bergen Hydraulic;
whether the speed was adjusted before the accident; and whether
the elevator was serviced three weeks before the accident.
8
exercised control over the condominium property, owed a non-
delegable duty to ensure the safety of those who used the
elevator and that all defendants breached their duty to
adequately maintain and repair the elevator. McDaid asserts
that she was entitled to a res ipsa inference because elevator
doors probably do not malfunction in the absence of negligence.
She also claims that the trial court improvidently granted
summary judgment because she established a prima facie case
through the res ipsa inference, her expert report, and her
account as presented in discovery.
B.
Amicus curiae NJAJ expresses its concern that the Appellate
Division’s interpretation of res ipsa undermines the doctrine’s
very purpose, which is to shift to a defendant the obligation of
explaining why an instrumentality under its control caused
injury to a plaintiff. According to NJAJ, requiring the
plaintiff to point to the specific act of negligence of the
defendant denies the plaintiff the benefit of the res ipsa
inference. NJAJ asserts that an elevator door that closes on a
passenger is an occurrence that bespeaks negligence, giving rise
to a res ipsa inference.
C.
Defendants argue that the Appellate Division properly
affirmed the grant of summary judgment. They contend that the
9
res ipsa inference is inapplicable to cases involving
malfunctioning elevator doors for the reasons expressed in Gore,
335 N.J. Super. at 303. Relying on Gore, defendants submit that
in a negligence action involving a complex instrumentality, such
as an elevator, the plaintiff “must bring forth affirmative
evidence that tends to exclude other possible causes of the
injury.” See ibid. They assert that an elevator’s electric eye
“is a piece of mechanical equipment containing relays which,
without notice or negligence, may on occasion fail” and
therefore res ipsa is not an appropriate fit in this context.
Further, defendants maintain that McDaid failed to present
evidence that the elevator’s electric eye was not working
properly or that they had notice that it was malfunctioning
before the accident. They assert that in the absence of actual
or constructive notice of some defect in the operation of the
elevator doors, they cannot be held liable in negligence. They
also point to the reports of their experts, who opined that
McDaid “was not within the plane of the electric eye sufficient
to trigger the safety feature.” With that evidential
foundation, the Condominium Association and Preferred Management
theorized that McDaid’s “neurological condition suggest[ed] a
cause of [her] injuries wholly unrelated to the elevator’s
function.”
III.
10
A.
Whether the doctrine of res ipsa loquitur applies to an
allegedly malfunctioning elevator door that causes injury to a
passenger is an issue of law. We review matters of law de novo,
owing no deference to the interpretive conclusions of either the
trial court or Appellate Division. Qian v. Toll Bros. Inc.,
223 N.J. 124, 135 (2015).
B.
Under the Condominium Act,
N.J.S.A. 46:8B-1 to -38,
condominium associations are “responsible for the administration
and management of the condominium and condominium property.”
N.J.S.A. 46:8B-12. A condominium association’s responsibility
extends to “[t]he maintenance, repair, [and] replacement . . .
of the common elements.”
N.J.S.A. 46:8B-14(a). An elevator
shared by the condominium community is part of the common
elements or common areas. See N.J.A.C. 5:10-2.2 (defining
“common area” as “all areas accessible to, and which may be
utilized by either occupants of a building or the general public
. . . which is not part of any dwelling unit”).
Like any premises owner under the common law, a condominium
association has a duty to exercise reasonable care to protect
the condominium’s residents from a dangerous condition on
property within the ambit of the common elements. See Qian,
223 N.J. at 137 (citing Hopkins v. Fox & Lazo Realtors, 132 N.J.
11
426, 433-34 (1993)). A condominium association’s duty to keep
the common elements reasonably safe is non-delegable. N.J.A.C.
5:10-4.1(a). In accordance with the Act, condominium
associations have the duty of a premises owner as set forth in
the governing regulations, N.J.A.C. 5:10-4.1(c), and one such
duty is to ensure that “elevator doors, . . . safety devices and
operating mechanisms [are] maintained in good working order and
free of hazards,” N.J.A.C. 5:10-12.1(a). That duty necessarily
includes “a duty of reasonable care to guard against any
dangerous conditions [relating to the elevator] that the
[association] either knows about or should have discovered.”
See Hopkins,
132 N.J. at 434; see also N.J.A.C. 5:23-12.1 to -
12.12 (setting forth detailed standards for maintenance and
inspection of elevators).
Finally, “[i]f an elevator is covered by a maintenance
agreement, the ambit of a maintenance contractor’s duty to third
persons may be measured by the nature and scope of its
contractual undertaking.” Rosenberg v. Otis Elevator Co.,
366 N.J. Super. 292, 303 (App. Div. 2004) (alteration in original)
(quoting Qualls v. U.S. Elevator Corp.,
863 P.2d 457, 462-63
(Okla. 1993)).
C.
In a premises liability case, the plaintiff has the burden
of proving that the property owner’s negligence caused her
12
injuries. Jerista,
185 N.J. at 191. “Res ipsa loquitur, Latin
for 'the thing speaks for itself,’ is a longstanding evidentiary
rule grounded in principles of equity” that “enables the
plaintiff to make out a prima facie case” in certain
circumstances. Ibid. The res ipsa doctrine allows a factfinder
to draw an inference of negligence when: “(a) the occurrence
itself ordinarily bespeaks negligence; (b) the instrumentality
was within the defendant’s exclusive control; and (c) there is
no indication in the circumstances that the injury was the
result of the plaintiff’s own voluntary act or neglect.” Id. at
192 (quoting Buckelew v. Grossbard,
87 N.J. 512, 525 (1981)).
The res ipsa doctrine advances the common-sense notion that
the party who maintains exclusive control over the object that
goes awry and causes injury is in a superior position to explain
what went wrong and why. Ibid. When the evidence provides a
reasonable basis for invoking res ipsa, then the factfinder can
infer “that if due care had been exercised by the person having
control of the instrumentality causing the injury, the mishap
would not have occurred.” Brown v. Racquet Club of Bricktown,
95 N.J. 280, 288-89 (1984) (quoting Bornstein v. Metro. Bottling
Co.,
26 N.J. 263, 269 (1958)). Although the ultimate burden of
persuasion always remains with the plaintiff, the res ipsa
inference gives an incentive to the defendant to dispel the
inference by showing that whatever went wrong was not due to his
13
negligence or was due to the fault of some other person or the
plaintiff. Jerista,
185 N.J. at 192.
The case before us implicates only the first prong of the
res ipsa analysis -- whether the closing of automatic elevator
doors on a passenger “ordinarily bespeaks negligence.” Whether
an accident “ordinarily bespeaks negligence” requires a
probability assessment -- is it more or less likely that such an
event would occur in the absence of negligence? See Buckelew,
87 N.J. at 526-27. Obviously, automatic doors are not supposed
to close on and seriously injure a passenger who enters or exits
an elevator. But if that happens, is it more likely that the
accident occurred because due care was not exercised in the
maintenance of the elevator or because elevator doors will
malfunction, from time to time, without anyone being at fault?3
That is the basic question raised in deciding whether res ipsa
applies to the facts of this case.
To invoke the res ipsa inference, a plaintiff does not have
to exclude alternative possible causes of the accident,
“provided that the circumstances establish 'that it is more
probable than not that the defendant’s negligence was a
proximate cause of the mishap.’” Jerista,
185 N.J. at 192
3 McDaid did not pursue a product liability action against the
manufacturer, and defendants have not suggested that the
elevator itself is inherently defective.
14
(quoting Brown,
95 N.J. at 291-92). The res ipsa inference
ordinarily will allow the plaintiff to establish a prima facie
case and survive a motion to dismiss at the summary judgment
stage -- that is, unless “the defendant’s countervailing proofs
are so overwhelming that they destroy any reasonable inference
of negligence.” Id. at 193 (citing Brown,
95 N.J. at 289).
Because the res ipsa inference is simply permissive, if the case
goes to trial, “the factfinder 'is free to accept or reject’
it.” Ibid. (quoting Buckelew,
87 N.J. at 526).
D.
With those general principles as our guide, we applied the
doctrine of res ipsa in Jerista, a case involving a
supermarket’s automatic door that caused injury to a patron.
185 N.J. at 190-200. In that case, the automatic door opened
inward as the patron entered the supermarket, and then “suddenly
swung backwards, striking her right side and briefly pinning her
body, causing significant injuries.” Id. at 182. We rejected
the notion that a negligence action involving a complex
instrumentality necessarily required the patron to produce
expert testimony to gain the res ipsa inference. Id. at 197-99.
The drawing of a res ipsa inference does not depend on “whether
the instrumentality at issue is complex or simple, but whether
based on common knowledge the balance of probabilities favors
negligence.” Id. at 199. Thus, “[o]nly when the res ipsa
15
inference falls outside of the common knowledge of the
factfinder and depends on scientific, technical, or other
specialized knowledge is expert testimony required.” Ibid.
With regard to the automatic door in Jerista, we reasoned
that
[a]n automatic door may be a highly
sophisticated piece of machinery, but it
probably does not close on an innocent patron
causing injury unless the premises’ owner
negligently maintained it. That conclusion
can be reached based on common knowledge
without resort to expert testimony. A jury
does not need an expert to tell it what it
already knows. If the premises’ owner, who
has exclusive control over the automatic door,
has proof that he is not to blame and that
another is at fault, he must come forward to
rebut the inference.
[Id. at 197.]
We did not break new ground in Jerista in finding that the
supermarket customer was entitled to the res ipsa inference. We
relied on our decision in Rose v. Port of New York Authority,
61 N.J. 129, 136-37 (1972), a case involving a plaintiff who was
struck by an automatic glass door as he entered an airline
terminal. Jerista,
185 N.J. at 193-95. The res ipsa inference
applied in Rose “because it is common knowledge that people
ordinarily pass through automatic doors without suffering
injury, and that an automatic door smashing into a customer
'strongly suggests a malfunction which in turn suggests
neglect.’” Id. at 195 (quoting Rose,
61 N.J. at 136-37). In
16
Jerista, we cited a number of jurisdictions that agreed with
that proposition. Id. at 196; see, e.g., Brewster v. United
States,
542 N.W.2d 524, 531-32 (Iowa 1996) (noting that majority
of courts “have concluded an automatic door malfunction does not
occur in the absence of negligence” and that “it is within the
common experience of lay people to come to this conclusion”).
Importantly, in Jerista, we specifically disapproved of the
legal pronouncements in Jimenez v. GNOC, Corp.,
286 N.J. Super.
533, 544 (App. Div. 1996), that res ipsa is inapplicable in
complex instrumentality cases unless expert testimony is
presented and the injured party “exclude[s] other possible
causes of the injury.”
185 N.J. at 197-98 (quoting Jerista v.
Murray,
367 N.J. Super. 292, 300 (App. Div. 2004)). Here, the
trial court and appellate panel relied on those discredited
legal pronouncements, citing to Gore,
335 N.J. Super. at 302-03,
which, in turn, looked to Jimenez for support.
To be sure, Gore involved allegedly malfunctioning elevator
doors that caused injury to the plaintiff,
335 N.J. Super. at
299-300, not an automatic store door as in Jerista or an airport
door as in Rose. Nevertheless, it bears mentioning that after
our decision in Jerista, we granted certification in Huszar v.
Greate Bay Hotel & Casino, Inc.,
375 N.J. Super. 463 (App. Div.
2005), an elevator-door case, and “summarily remanded to the
trial court for reconsideration in light of Jerista.” 185 N.J.
17
290 (2005).4 Neither the trial court nor the Appellate Division
in the present case applied the principles discussed in Jerista.
A number of jurisdictions have held that elevator doors
that close on a passenger causing injuries give rise to a res
ipsa inference of negligence. See, e.g., Knight v. Otis
Elevator Co.,
596 F.2d 84, 90-91 (3d Cir. 1979) (permitting res
ipsa inference to allow jury to determine whether “the premature
closing of the elevator doors does not usually occur unless the
defendant has been negligent”); First Nat’l Bank v. Otis
Elevator Co.,
406 P.2d 430, 434 (Ariz. Ct. App. 1965) (applying
res ipsa because “a jury might well believe plaintiff was hit by
the elevator door, and that elevator doors do not hit people in
the absence of someone’s negligence”); Little Rock Land Co. v.
Raper,
433 S.W.2d 836, 842 (Ark. 1968) (holding “[t]he
application of the doctrine of res ipsa loquitur was not
erroneous” against building owner after elevator doors closed on
plaintiff); Montgomery Elevator Co. v. Gordon,
619 P.2d 66, 69
(Colo. 1980) (applying res ipsa because “[c]ommon sense and
experience tell us that elevators do not usually operate in this
4 In Huszar, while visiting the Sands Hotel and Casino, the
plaintiff was injured when the elevator closed on her and
knocked her to the ground.
375 N.J. Super. at 467. The
Appellate Division concluded that the plaintiff was not entitled
to the res ipsa inference because “elevator doors are complex
instrumentalities requiring plaintiff to present expert
testimony to establish a defective mechanism” or negligent
maintenance. Id. at 475-76.
18
manner and that, when they do, negligence is a more probable
explanation than other causes” (quoting Gordon v. Westinghouse
Elec. Corp.,
599 P.2d 953, 955 (Colo. App. 1979))); Otis
Elevator Co. v. Henderson,
514 A.2d 784, 785 (D.C. 1986)
(finding res ipsa applicable despite plaintiff’s inability “to
identify the specific mechanical failing”); Greet v. Otis
Elevator Co.,
187 A.2d 896, 897-98 (D.C. 1963) (permitting res
ipsa instruction against multiple defendants despite plaintiff
“offer[ing] no evidence as to the cause or reason” in elevator-
door case); Burns v. Otis Elevator Co.,
550 So. 2d 21, 22 (Fla.
Dist. Ct. App. 1989) (“The doctrine of res ipsa loquitur is
particularly applicable in elevator cab cases.” (quoting
Ferguson v. Westinghouse Elec. Corp.,
408 So. 2d 659, 660-61
(Fla. Dist. Ct. App. 1981))); Carney v. Otis Elevator Co.,
536 A.2d 804, 806 n.1 (Pa. Super. Ct. 1988) (finding elevator doors
crushing plaintiff “an appropriate case for the utilization of
res ipsa loquitur”).
However, not all jurisdictions apply the res ipsa inference
in elevator-door cases. See, e.g., Pratt v. Freese’s, Inc.,
438 A.2d 901, 904 (Me. 1981) (declining to apply res ipsa because
“[t]here must be proof that the accident would not have occurred
had the defendants used due care” and “[p]laintiffs introduced
no evidence to show that at the time of the accident a defect in
the elevator existed which either defendant could have remedied
19
by using due care”).
We now hold that, in a negligent-maintenance action against
a premises’ owner and others who exercise exclusive control, the
res ipsa principles enunciated in Jerista apply as strongly to
malfunctioning elevator doors as they do to malfunctioning
automatic doors. We cannot discern a rational distinction
between the two classes of cases -- elevator doors and automatic
doors. Just as, based on common knowledge, an automatic door
“probably does not close on an innocent patron causing injury
unless the premises’ owner negligently maintained it,” Jerista,
185 N.J. at 197, the same is true of a malfunctioning elevator
door. It may well be that elevator-door accidents will occur at
times without anyone being at fault. However, based on “the
balance of probabilities,” an elevator door that closes onto and
injures a passenger is an occurrence bespeaking negligence that
falls within the common knowledge of judges and jurors. See id.
at 192, 200.
We therefore join those jurisdictions that apply the res
ipsa inference to cases involving malfunctioning elevator doors.
In light of this holding, we must determine whether the trial
court properly granted summary judgment in favor of defendants
in the present case.
IV.
Because the malfunctioning of elevator doors that close on
20
a passenger bespeaks negligence, giving rise to a res ipsa
inference, we find that the trial court improvidently granted
summary judgment. To gain the benefit of th